United States v. Richard Jones , 927 F.3d 895 ( 2019 )

Case: 18-10590 Document: 00515005893 Page: 1 Date Filed: 06/21/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-10590 June 21, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
RICHARD DESHAWN JONES,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, WIENER, and ELROD, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellee Richard Deshawn Jones was arrested in March
2017 while in possession of a firearm. The metal serial-number plate had been
removed from the frame of the handgun, but it had a legible serial number on
its slide. The number on the slide was used to trace the firearm.
I. FACTS AND PROCEEDINGS
Jones pleaded guilty to being a Felon in Possession of a Firearm. The
presentence report (PSR) calculated Jones’s offense level. It recommended a
four-level enhancement for possession of a firearm with an altered or
obliterated serial number. Jones timely objected to the enhancement, but at
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No. 18-10590
sentencing, the district court overruled his objection. Jones appeals the
application of that four-level enhancement.
II. ANALYSIS
We review the district court’s application of the sentencing guidelines de
novo and its factual findings for clear error. 1 Guideline § 2K2.1(b)(4) applies a
four-level enhancement to a defendant’s base offense level “[i]f any firearm . . .
had an altered or obliterated serial number.” 2 In United States v. Perez, we
addressed the meaning of “altered or obliterated” and adopted the Ninth
Circuit’s holding in United States v. Carter that “a firearm’s serial number is
‘altered or obliterated’ when it is materially changed in a way that makes
accurate information less accessible.” 3 We held in Perez that an attempt to
scratch the serial number off of a firearm made accurate information less
accessible, even though the serial number was “actually readable.” 4 In so
doing, we relied on the reasoning in Carter 5 that the purpose of the
guideline─to discourage the use of untraceable weaponry─was advanced by
punishing the use of guns that were merely more difficult to trace. 6
The Ninth Circuit further reasoned in Carter that “nothing in [the
guidelines] suggests that the alteration [or obliteration] must make tracing
impossible or extraordinarily difficult.” 7 That court concluded that Guideline §
1 United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).
2 U.S. Sentencing Guidelines Manual § 2K2.1(b)(4) (U.S. Sentencing Comm’n 2018).
3 585 F.3d at 885 (quoting United States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005)).
4 Id. at 883, 885.
5 Id. at 884–85.
6 Carter, 421 F.3d at 914.
7 Id. at 916 (quoting United States v. Adams, 305 F.3d 30, 34 (1st Cir. 2002)).
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2K2.1(b)(4) is properly applied to a defendant who possessed a traceable
firearm with a defaced serial number. 8
We have not previously addressed the specific facts of Jones’s case, viz.,
a metal serial-number plate having been removed from the gun’s frame but the
serial number on the slide remaining unaltered. In United States v. Serrano-
Mercado, the First Circuit held that Guideline § 2K2.1(b)(4) applies when a
serial number on the frame of a firearm is obliterated, even if serial numbers
on other components of the firearm remain unaltered. 9 There, “Serrano’s pistol
had an obliterated serial number on the frame and an unaltered serial number
on the slide.” 10 The First Circuit noted that the guideline requires “only ‘an
altered or obliterated serial number’” 11 and reasoned that
[a]pplying an enhancement for firearms that have a single
totally obscured serial number may serve as a deterrent to
tampering, even when incomplete. And, relatedly, the single-
obliteration rule could facilitate tracking each component that
bears a serial number, given that various parts of firearms may be
severable. 12
Serrano-Mercado is directly on point. Jones possessed a handgun (1)
from which a plate bearing a serial number had been removed from the frame,
but (2) with an unaltered serial number remaining on the slide. We join the
First, Eighth, and Eleventh Circuits in holding that the applicable guideline
8 Id. at 910, 916; cf. United States v. Seesing, 234 F.3d 456 (9th Cir. 2000) (holding
that Guideline § 2K2.1(b)(4) was applied in error because the homemade silencer never had
a serial number to alter or obliterate).
9 784 F.3d 838, 850 (1st Cir. 2015).
10 Id. at 849.
11 Id. at 850; see also United States v. Thigpen, 848 F.3d 841, 845–46 (8th Cir. 2017);
United States v. Warren, 820 F.3d 406, 408 (11th Cir. 2016).
12 Serrano-Mercado, 784 F.3d at 850.
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“requires only that one serial number be altered or obliterated, even if others
are clearly legible.” 13
Jones counters that the guideline is not applicable here because the
serial number itself was not altered or obliterated; rather, the firearm was
altered by the removal of the serial-number plate. 14 We disagree with this
flawed semantic distinction because the efficacy of the serial-number plate is
negated by its removal from the firearm. A serial number removed from its
product is effectively obliterated because it no longer serves its purpose of
identifying that item. Perez and Carter support the conclusion that the serial
number in this case was altered because its location was changed in a way that
makes accurate information less accessible.
Jones finally argues that removal of a serial number is not an alteration
or obliteration because the guideline does not include the word “remove.” In
Carter, the Ninth Circuit discussed the meanings of the words “obliterated”
and “altered.” 15 That court observed that “‘obliterate’ is defined by Black’s Law
Dictionary as ‘[t]o remove from existence’” and that “‘altered’ . . . requires a
lesser degree of defacement.” 16
The Ninth Circuit subsequently held, in United States v. Romero-
Martinez, that “‘removed’ falls comfortably within dictionary definitions of
‘obliterated.’” 17 The defendant in that case possessed a firearm that “was
missing the serial number on the frame” that had been “cast as a metal plate
affixed to the frame.” 18 “Romero-Martinez challenge[d] the inclusion of
13 Thigpen, 848 F.3d at 845–46 (citing Warren, 820 F.3d at 408; Serrano-Mercado, 784
F.3d at 850).
14 This argument is based on the grammatical structure of the guideline. Jones argues
that “altered or obliterated” modifies “serial number” not “firearm.”
15 Carter, 421 F.3d at 912–13.
16 Id. at 912.
17 443 F.3d 1185, 1189 (9th Cir. 2006).
18 Id. at 1187.
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‘removed’ within the definition of ‘obliterated.’” 19 The Ninth Circuit rejected
that argument and held that Guideline § 2K2.1(b)(4) applied because “the
removal of the metal plate certainly makes the firearm less traceable.” 20
This court in Perez held that “a firearm’s serial number is ‘altered or
obliterated’ when it is materially changed in a way that makes accurate
information less accessible.” 21 Removal of the metal serial-number plate from
the frame of a firearm is a material change in the location of the serial number
that makes accurate information, viz., the serial number identifying that
firearm, less accessible. Removal of the metal serial-number plate thus alters
or obliterates the serial number under Guideline § 2K2.1(b)(4).
AFFIRMED.
19 Id.
20 Id. at 1191.
21 Perez, 585 F.3d at 885 (quoting Carter, 421 F.3d at 916).
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